ARTICLE
20 March 2025

Issues In Construction Negligence Cases: Assumption Of Duty; The Role Of OSHA Regulations; And The Role Of Expert Testimony

CJ
Clendening Johnson & Bohrer

Contributor

Clendening Johnson & Bohrer, P.C. is a client-driven law firm with offices in Bloomington, Indiana. Our experienced attorneys and professional staff provide a full range of litigation, business and personal legal services. We firmly believe that our clients are our most important business asset. Whether this is the first time you have retained our firm or you are one of our valued clients who regularly uses our services, we understand that successfully and efficiently concluding your legal matter is vitally important.

Our attorneys advocate for clients in state and federal courts in all types of litigation. In addition, when appropriate, we discuss alternative means of resolving conflicts and explore innovative means of solving complex legal problems. We initiate, continue and conclude business relationships and prepare plans for protecting and transferring our clients’ accumulated wealth in the most efficient manner.

Under Indiana law, all tort actions for personal injury, including construction actions, are subject to Indiana's Comparative Fault Act. I.C. § 34-20-8-1. Under Indiana's Comparative Fault Act "Comparative Fault Act", I.C. § 34-51-1, et. seq., the jury apportions fault for Plaintiff's damages to Plaintiff, each defendant and each non-party identified in the pleadings.
United States Real Estate and Construction

COMPARATIVE FAULT AND VICAROUS LIABILITY BY ASSUMPTION OF DUTY

Under Indiana law, all tort actions for personal injury, including construction actions, are subject to Indiana's Comparative Fault Act. I.C. § 34-20-8-1. Under Indiana's Comparative Fault Act "Comparative Fault Act", I.C. § 34-51-1, et. seq., the jury apportions fault for Plaintiff's damages to Plaintiff, each defendant and each non-party identified in the pleadings. If Plaintiff's fault exceeds 50%, then a defense verdict is entered. Otherwise, each defendant is responsible for—and only for—that portion of the damages awarded in relation to its fault, and Plaintiff's award of damages is reduced by all fault assessed to Plaintiff as well as any identified non-parties. An injured construction worker cannot bring an action directly against his employer to recover for personal injuries. I.C. §22-3-2-6. However, pursuant to Indiana's Comparative Fault Act, an employer can be named by the named defendants as a "non-party" whose fault caused or contributed to plaintiff's injuries. I.C. §34-6-2-88. The Comparative Fault Act does not restrict an injured employee from pursuing a claim against any "other person than the employer." Ind.Code § 22–3–2–13 (2007). Hunt Const. Grp., Inc. v. Garrett, 964 N.E.2d 222, 224 (Ind. 2012). As a general rule, "a general contractor [...] will ordinarily owe no outright duty of care to a subcontractor's employees, much less so to employees of a sub-subcontractor. This means that when a subcontractor fails to provide a reasonably safe workspace, the general contractor will not incur liability for employee injury, even when such injury is proximately caused by the subcontractor negligence." Ryan v. TCI Architects/Engineers/Contractors, Inc., 72 N.E.3d 908,913 (Ind. 2017).

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